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This research paper addresses the differences between civil liberties, civil rights, and human rights, approaching the subject from a multidisciplinary and global perspective. Among other aspects, the entry focuses on three fundamental tensions in this field: the tension between the philosophical origins of these concepts and their political and historical manifestations and influences; the tension between culture and universalism; and the ironic or ambivalent relationship between rights and state power. A concluding section discusses the special problem of terrorism and rights.
- Basic Historical Background
- Basic Aspects of Civil Liberty and Human Rights
- Relationship to the State
- Some Basic Issues
- Civil Liberties in Practice
- Human Rights in International Practice
- The Continuing Dilemma of Rights and the State
- The Special Problems Posed by International Terrorism
Civil liberties and human rights are the basic freedoms and claims individuals possess as members of political orders or as members of the human race. Civil liberties are essentially ‘negative’ political rights that stand as shields against state actions and infringements, whereas human rights may include (depending upon the theorist or political posture) these claims as well as broader claims to such things as social and economic rights, cultural rights, and collective rights of peace and environmental health. This research paper discusses the political and intellectual history of civil liberties and human rights, their contemporary domestic and international political and legal contexts, and major debates surrounding their usage. Emphasis is placed on the aspirations behind these concepts, as well as on the tensions and conflicts that accompany their use.
‘Civil liberties’ and ‘human rights’ are closely related terms that embrace the basic freedoms and claims to which individuals are entitled, either as citizens of a particular state or by virtue of being human. The very ideas of civil liberty and human rights presuppose two intertwined convictions: that individuals or groups in civil society have moral status independent of the organized power of society (e.g., the state); and that this power must respect the rights that flow from this status. Though they arose as a response to political and normative claims in the West, at the beginning of the twenty-first century civil liberties and human rights are at least officially endorsed by virtually all countries and the community of international law. The content and scope of these concepts are contested on philosophical and political grounds. Accordingly, the concepts provide a good method of examining the ways in which important philosophical and legal concepts interact with political and historical forces.
Basic Historical Background
The idea of a moral status independent of the state is tied in multifarious ways to notions of higher (or natural) or universal law, democracy, individual conscience, and limited government. These notions have echoes in history as far back as ancient Athens and Rome, and in medieval Christian thought. The modern turn toward individual ‘rights’ (as opposed to natural ‘law’) was the product of a complex historical process that included Renaissance and humanist emphases on human achievement and creativity; the Protestant Reformation’s stress on individual religious conscience and religious pluralism; the Enlightenment’s belief in the power of reason and the individual; the growth of markets; and – most importantly – the rise of democracy (see Law and Democracy). The specifically liberal tradition of limited government and natural rights arose in the political and intellectual history of several European countries, notably England, Scotland, France, and the Netherlands, and in the United States, in the seventeenth and eighteenth centuries.
Social contract theory in the seventeenth and eighteenth centuries envisioned ‘social contracts’ between the government and the citizenry based on the consent of the governed and the protection of natural rights. Building on the theory of Thomas Hobbes, John Locke (1998) maintained in his influential Second Treatise on Government (a work defending the Glorious Revolution in England in 1688, and the 1689 English Bill of Rights) that government’s primary purpose is to protect the rights of individuals found in the state of nature, specifically rights to life, liberty, and property. The American Declaration of Independence (1776) and the French Declaration of Man and the Rights of Citizens (1789) carried these ideas further, declaring the primacy of civil and political liberties.
Basic Aspects of Civil Liberty and Human Rights
Though the distinction between ‘positive’ and ‘negative’ rights (first articulated by philosopher Isaiah Berlin, 1969) is often blurred or overstated, civil ‘liberties’ are often considered negative rights in that they serve as shields that protect the liberty and rights of individuals and members of civil society from state oppression. They represent claims against state action. Classic civil liberties include freedom of speech, the press, assembly, and religion, due process and fairness in legal proceedings (especially criminal process), privacy, and freedom from illegitimate discrimination.
Civil liberties should be distinguished from civil rights. Civil ‘rights’ are often construed as more ‘positive’ rights, in that they entail the state bestowing a power to do something affirmative, or taking action to protect fundamental interests or claims against private (nongovernmental) actions. For example, the right to use privately owned public accommodations or facilities, or the right not to be discriminated against in private employment, can be construed as civil rights. More broadly defined positive rights may include such claims as the right to a job, to obtain adequate housing, and to share in more equal distribution of resources. More aggressive state action is needed to effectuate such rights.
Civil liberties and rights are generally claims tied to citizenship in particular legal orders. ‘Human rights’ are more universal in nature; they exist simply because one is a human being. These include the civil liberties discussed previously, as well as freedom from torture, slavery, and degrading treatment; freedom of the family; and basic self-determination. Debate swirls around whether such rights include basic economic, social, and cultural rights and needs, or broader collective goods.
Though human rights claims can be derived from specific domestic or international legal sources, their claims are distinctively moral. As political theorist Jack Donnelley (1989) remarks, “Human rights claims are essentially extralegal; their principal aim is to challenge or change existing institutions, practices or norms, especially legal institutions.” Accordingly, Donnelley emphasizes the ‘possession paradox’: Having a right is most important when “enjoyment of the object of the right is threatened or denied.” Thus, human rights claims typically arise when a particular claim is not afforded legal protection by a particular country, such as same-sex sexual expression at one time in some states in the United States, or religious conscience in China today.
The distinct concept of ‘human’ rights arose in the aftermath of World War II, with the widespread condemnation of the atrocities the Nazis committed against Jews and other minorities. After having declined in the wake of skepticism and new political movements in the nineteenth and twentieth centuries (e.g., utilitarianism, emotivism, nationalism, and Marxism), notions associated with natural rights and natural law enjoyed a revival in the aftermath of the war, as democratic theorists regained respect for more objective moral principles that provide standards by which to evaluate the practices of states. Such theorists as Leo Strauss (1950) and Edward Purcell (1973) have written about a postwar ‘crisis’ in democratic theory along these lines. The term ‘human’ rights avoided the intellectual and political baggage associated with ‘natural’ law and rights, while at the same time pointing to universally held moral principles. In the unprecedented Nuremberg trials held after the war, Allied prosecutors convicted Nazi leaders of crimes against peace and humanity. Also, in the wake of World War II, the new United Nations (UN) made human rights an important part of its agenda, and Japan and West Germany, under the aegis of occupying forces, adopted constitutions that protect basic civil liberties and rights.
Relationship to the State
The concept of individual or natural rights is historically and pragmatically related – both positively and negatively – to the emergence of the modern nation-states from feudalism between the thirteenth and seventeenth centuries. In 1648, the Peace of Westphalia, which ended the murderous Thirty Years’ War in Europe between Catholic and Protestant states, constituted the first formal international recognition of the nation-state’s autonomy from religious authority. It also established the first official tolerance of religious pluralism, a crucial move in the rise of civil liberty and human rights. Yet the Westphalian model of international law left no room for the international enforcement of individual rights, as its main objective was the recognition of the principle of territorial sovereignty (domestic jurisdiction) of strong states.
Nonetheless, the rise of strong nation-states made individual rights more important than they had been in the past, spawning new theories about the obligations of states to citizens. Indeed, another paradox (which also involves the endemic jurisprudential debate between legal positivism and forms of legal analysis based on natural law) concerns the relationship between rights claims and their enforcement or recognition. Though many theorists persuasively contend that rights claims exist independently of legal protection, rights claims (positive and negative) have to be recognized and enforced by those in power in order to be effective. The Nuremberg trials present a classic example of this fact. (Some have called the verdicts ‘victors justice’.) As James Madison wrote, following the logic of Hobbes and Locke, liberal freedom can exist only when the state is strong enough to protect its citizens, but also limited enough so as not to oppress them. Writing in the aftermath of World War II, Hannah Arendt (1951) chillingly portrayed how vulnerable stateless people are to abuse of their humanity. Legal theorist Stephen Holmes (1995) puts the matter succinctly: “Weak-state pluralism is a recipe not for liberalism, but for a proliferation of rival and coercive mafias, clans, gangs, and cults . Liberal government . is meant to solve the problem of anarchy and the problem of tyranny within a single and coherent system of rules” (pp. 270–271).
Some Basic Issues
Important questions have been raised about the content and intellectual foundation of human rights and civil liberties. What is the scope of rights? Are such rights derived from political or legal agreement, or are they postulates of theological or philosophical inquiry? Do we grasp them by intuition or reason? Which claims are fundamental, and which less fundamental, and how can we make this determination? Should the list of fundamental claims include only basic political and civil liberties, or should it also include social and economic rights? Are rights claims culturally determined or relative, as the American Anthropological Association officially declared in 1947, or are there general principles that make certain claims universal?
Some thinkers, such as Christian Bay (1982), maintain that human rights stem from human ‘needs,’ which include shelter, food, and livelihood; others emphasize human beings’ distinctive moral nature, stressing human dignity, self-respect, and citizenship. The debate concerns those who define human nature in largely materialistic or naturalistic terms, and those who define human nature in terms of such qualities as rationality, moral capacity, or spirituality.
Writers such as Henry Shue (1980) distinguish basic from less basic rights. A right is basic if its enjoyment is ‘essential to the enjoyment of all rights.’ These rights include physical security, economic security or subsistence, and liberty to participate in the economic and political life of the community. Still others, such as Donnelley, argue that this list is insufficient because a fully developed life requires more opportunities and attributes than these minimums. However, history shows that ‘negative’ civil liberties are necessary to protect us from the state, so these should always be on the short list of basic rights. If we decide to include more rights as basic, we must do so without sacrificing basic civil liberties. (This is the approach of philosopher John Rawls in his classic book A Theory of Justice (1971): no scheme of social justice may negate fundamental civil liberties.) And we must understand that the longer the list of basic rights, the greater the potential for conflict among rights and social policies designed to promote them.
Theorists such as French jurist Karel Vasak (1982) posit ‘generations’ of rights based on historical development. The first generation consists of political and civil liberties, while the second generation embraces egalitarian social and economic rights. The so-called third generation rights involve humanity as a whole, including cultural self-determination, environmental health, solidarity, and peace.
The founding movements and documents in the rise of liberal democracy accentuated civil and political liberties. Yet the rise of socialism, Marxism, and the working class in the nineteenth century spawned the advocacy of social and economic rights in addition to (or instead of ) civil and political rights. In the twenty-first century, such rights are found in the constitutions or fundamental laws of communist (and former communist) states and many developing or third world states. Though developed liberal states are mainly dedicated to political and civil rights, social and economic rights often comprise parts of their social and legislative policy. In recent decades, such internationalist groups as the Lawyers Committee for Human Rights and the Fair Labor Association contend that corporations’ use of factories in developing countries has made the protection of economic and social rights in those countries a primary concern.
Human rights covenants in the UN reflect these debates. In 1946, the Economic and Social Council of the UN established the Commission on Human Rights, which led to the Universal Declaration of Human Rights in 1948, a foundational document that has achieved the status of customary international law. In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) were signed by most states, taking effect in 1976. The ICCPR protects such basic civil liberties as freedom from arbitrary punishment, forced servitude, and unfair criminal process; freedom of thought, conscience, and religion; personal liberty and security; freedom of the family; freedom to participate in fair elections; and equal suffrage. An Optional Protocol of the ICCPR commits ratifying states to allow a special committee of experts to examine claims by individuals against them.
The ICESCR covers such rights as the right to work under good conditions; the right to an adequate standard of living; and the right to social security, food, clothing, shelter, and basic health. The ICESCR is less stringent in its wording than the ICCPR. Signatories established no rank ordering of these rights, and enforcement is more a matter of exposure and persuasion than force.
Civil Liberties in Practice
The protection of civil liberties varies (in legal provisions and applications of these provisions) in different countries due to cultural and political factors. For instance, free speech doctrine and practice in the United States protect the advocacy of illegal action, including racist rhetoric that falls short of directly triggering a disturbance of the peace or inciting violence. In contrast, Canada, Israel, Germany, France, and many other countries prohibit speech that advocates racism (racist rhetoric), regardless of the likelihood of illegal action. In Germany and Austria it is illegal to belong to a Nazi party or to wear a Nazi uniform, while courts in the United States have expressly protected such actions.
Though virtually all countries have basic legal protections for criminal suspects, standards vary widely, especially when we look at practice rather than the letter of the law. In Russia, for example, where legal institutions are poorly developed, preventive detention and criminal procedure rights of criminal suspects are poorly enforced despite formal legal protections; France offers some protections but does not recognize the privilege against self-incrimination. In the area of religion, the United States maintains an exceptionally strict separation of church and state, while such democracies as Ireland, Italy, and Germany allow more accommodation between state and religion. In India, ‘personal laws’ linked to the major religions (Hindu, Muslim, Christian, and Parsi) are distinguished from normal civil law, thereby accommodating culturally based discrimination against women in such areas as marriage, divorce, and inheritance. Communist China has persecuted such religious groups as Christians and the Falun Gong because their views are allegedly contrary to state ideology. And such Muslim countries as Saudi Arabia, Iran, and Pakistan have severe laws against blasphemy (disparaging religion), a form of speech that the American First Amendment protects without qualification.
Social scientists and legal scholars cite several factors that influence the extent to which countries will support civil liberties and rights on a sustainable basis. Commitment to civil liberty has historically been accompanied by social pluralism, legal institutions based on rule of law, and the differentiation of the state from civil society. More specific explanations include such factors as the existence of a bill of rights and judicial independence, judicial leadership and control of case dockets, and a culture of rights consciousness that encourages citizens to think in terms of rights.
More recent explanations point to the presence of political and social movements that engender legal change (e.g., the civil rights movement in the United States; the freedom movement of South Africa led by Nelson Mandela). Charles Epp (1998) has pinpointed sustained pressure exerted by a ‘support structure for legal mobilization,’ which consists of rights-advocacy organizations and lawyers, and sufficient funding from private and (especially) public sources. Rights revolutions succeeded in the United States and Canada in recent decades because of the presence of these factors, while India’s rights movement was thwarted despite a favorable Supreme Court because such factors were absent.
Whether the ‘Arab Spring’ that erupted in Egypt and Tunisia in 2010 and spread to other Middle Eastern countries will result in greater freedoms and civil liberties in that region is an open question as of this writing. It will depend upon the strength of the factors considered herein.
Human Rights in International Practice
Until recently, the international system remained committed to the Westphalian model’s strong presumption in favor of the ‘domestic jurisdiction’ of states. But this situation slowly began to change with the growth of consciousness of human rights, the democratic ethic, and globalization. The most important events before the end of World War II and the Nuremberg trials include the abolition of slavery in the British empire in the 1830s and 1840s, culminating in the League of Nations’ Slavery Convention of 1926; the policy of ‘humanitarian invention’ by Western states to protect Christian citizens abroad in the nineteenth century; and several conventions and treaties protecting the rights of soldiers in war promulgated in the nineteenth and twentieth centuries.
In the wake of World War II and the humiliating failures of the League of Nations, the world community established the United Nations, which promulgated the UN Charter. Whereas the Westphalian model is premised on the freedom of states over their domestic jurisdictions, the UN Charter, or ‘new international law’ model, embraces the Kantian model of international relations and law, which emphasizes universal peace and human dignity. In reality, the models coexist in the contemporary world, posing sometimes vexing questions about where to draw the line between state sovereignty and international human rights norms. Such questions are not merely abstract problems, as supranational bodies face them on a regular basis. Yet the conferees who established the charter rejected a proposal to authorize intervention to protect rights, and a clause in the charter expressly prohibits intervention in ‘matters which are essentially within the domestic jurisdiction of states.’
In recent decades, many international treaties and forums have been established under the aegis of the UN or other regional and international organizations to promote recognition of human rights. States have signed treaties in conventions against torture, genocide, racial and gender discrimination, and treaties protecting refugees and children. Again, legal, social, and political movements have been indispensable to the promotion of human rights logic and practice, as the noted human rights activist Ayreh Neier chronicled in an authoritative book (2012). In addition to hundreds of regional and intergovernmental organizations (such as the Organization of American States, the Organization of African Unity, etc.), such nongovernmental organizations as Amnesty International, Human Rights Watch, and the International Committee of the Red Cross have played major roles in raising awareness, linking international organizations, and even bringing cases for enforcement in relevant jurisdictions (Keck and Sikkink, 1998).
States have drafted regional agreements to protect rights on all continents except Asia. In Europe, the European Convention of Human Rights and Fundamental Freedoms (based on the ICCPR) formed the European Court of Human Rights, which takes cases after they have been heard by the relevant domestic courts. Member states have agreed to accept all of the court’s rulings, leading, for example, to changes in Britain’s law of criminal procedure (most notably in the area of pretrial detention) and changes in several states’ laws concerning the rights of children born out of wedlock.
Not surprisingly, politics has affected the application of the ICCPR and ICESCR covenants. During the cold war era, Western countries championed the ICCPR, while communist countries supported the ICESCR. Third world countries have advocated rights of self-determination, cultural rights, and collective rights concerning resources (debates over law of the seas, etc.). Cultural relativism remains an issue. In 1993, Asian countries challenged claims about the universality of political and civil rights during the UN World Conference on Human Rights, arguing that such rights can be counterproductive, even dangerous, in the context of economic underdevelopment, fragmented nationalism, and fragile state institutions. Theorists such as Donnelley counter by pointing out that these arguments ignore the actual plights of persecuted minorities in these countries, thereby serving the interests of entrenched elites or tyrants. Similar concerns are raised about the status of women in many states, such as Saudi Arabia and Iran.
Enforcement of human rights at the international level has remained problematic because of the continued normative and prudential reluctance to intervene in the domestic jurisdiction of states. Hobbes and Locke would have predicted such a result in the absence of an international sovereign with sufficient power to enforce protections of rights. As a result, the main support for human rights has been in the form of moral persuasion (far from meaningless, if not always efficacious), exposure of violations through research and publication, and the deployment of such measures as economic sanctions. UN organizations have investigated several countries, including Chile, Rwanda, Somalia, Zaire, several Latin American countries, Iran, Iraq, and South Africa. Such investigations are no substitute for political will, however.
The Continuing Dilemma of Rights and the State
The decline of cold war politics in the UN Security Council enabled the UN to be somewhat more aggressive, sponsoring peacekeeping and actual interventions to protect human rights in Somalia, Iraq, and Bosnia in the early 1990s. Yet the efforts in Somalia and Iraq after 1991 proved short lived, and in 1994 the world stood by while massive genocide took place in Rwanda (Straus, 2006). In 1999, Cuba, China, and Sudan championed the norm of the territorial sovereignty of states in order to shield their abuses of human rights from international intervention, even though these states were at that time themselves members of the UN Human Rights Commission.
To be sure, Yugoslav president Slobodan Milosevic was defeated in his attempt to take over Kosovo in 1999, yet this victory was won by the military commitment and might of the North Atlantic Treaty Organization under the leadership of the United States and Britain; victory came only after Serbian forces had already carried out massive ethnic cleansing. After Kosovo, Czech president Vaclav Havel wrote in Kosovo and the End of the Nation-State that the nation-state would end in the next century, giving away to an international community governed ‘by universal or global respect for human rights, by universal civic equality and the rule of law, and by a global civil society.’ Writer Leon Wieseltier (1999) replied that no oppressed soul had ever been saved by the forces of ‘global civil society.’ Kosovo was delivered from Milosevic by the willful acts of allied nation-states. Though the nation-state is a source of evil, ‘it is also the nation-state from which we may demand rescue from such evils. The ethical content of a particular sovereignty is what finally matters.’
In 2011, a military intervention sponsored by the UN assisted the revolutionary movement of Libya in its fight against its tyrannical ruler, Muammar Gaddafi. This effort – led by the military power of the West, which regretted its failure to intervene in Rwanda 17 years earlier – succeeded in deposing Gaddafi; but the weakness of the new state in Libya has resulted in a chaotic situation as of this writing. The paradox of state power and rights perseveres.
The Special Problems Posed by International Terrorism
The emergence of violent Islamic extremism, epitomized by the terrorist attacks on the United States on September 11 2001, has created special quandaries for human rights and civil liberties, and for the applicability of governing standards of international law and the laws of war (Cassese, 2001). Terrorist threats before 9/11 were typically addressed through traditional criminal law enforcement, which is based on punishment after the fact and comparatively rigorous protections of rights. Though many states previously provided for greater surveillance and investigatory power in cases involving national security threats before 9/11, the criminal law model served as the predominant model for states in the fight against terrorism before then. But the existential threats posed by twenty-first century terrorism caused nation-states to adopt more aggressive preventative measures that blur the line between war powers and the powers of criminal law enforcement, and that challenge accepted notions of the rules of war because of the contested legal status of terrorists. Such measures have included treating captured terrorists as enemy combatants (rather than as criminal suspects or as normal prisoners of war) who may, therefore, be tried in military tribunals rather than in civil courts; employing more aggressive interrogation techniques in order to obtain intelligence that can prevent a major attack; detaining suspects indefinitely despite the lack of definitive evidence that they are enemy combatants who have violated the rules of war; and expanding the powers of surveillance (Bobbitt, 2008; Hoffman, 2006). Because liberal democracies exist to protect the security and rights of citizens, the battle against contemporary terrorism poses a special problem regarding what scholar Amos Guiora (2005) calls the ‘balancing dilemma’ between security and rights.
The emergence of twenty-first century terrorism has exacerbated the ‘balancing dilemma’ because of terrorism’s distinctive qualities mentioned previously, and because of the previous growth of international law’s commitment to human rights, also discussed earlier in this research paper. (See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, arts. 4, 13, August 12, 1949, 6. U.S.T. 3316, 75 U.N.T. S. 135.) Different liberal democracies have responded to the threat of market state terrorism in their own ways, based on such factors as their own understandings of national interest and their own political and legal cultures. Nonetheless, we can discern predominant trends. States typically expanded their powers to promote security, yet modified such powers over time in response to judicial and political pressures, and as more security was attained, however, precariously. In one respect, this trend supports the tenets of ‘political realism’ in foreign affairs and international relations: states will protect their sovereign interests when they feel they must, including readjusting the balancing dilemma (Posner and Goldsmith, 2005; Morgenthau, 1963).
For example, in the United States, federal courts have upheld detention of terrorists, military tribunals, and new surveillance while also requiring due process protections that the government had not provided (Chesney and Goldsmith, 2008). And in response to public and judicial pressure, the US government abandoned the use of the ‘enhanced interrogation techniques’ it had originally deployed. Israeli courts affirmed the Israeli government’s declaration that it was engaged in armed conflict with Palestinian terrorists in 2000, thereby allowing Israel to engage in proportionate violent attacks against them (State of Israel v. Marwaan Barghouti, 2002). The Israeli Supreme Court also upheld the state’s right to erect a 385-mile fence along the ‘Green Line,’ but ordered the state to minimize its effects (Beit Sourik Village Council v. The Government of Israel & the Commander of the IDF Forces in the West Bank, HCJ, 2056/04). Meanwhile, India redefined terrorism and expanded its powers of investigation and criminal process after 9/11, but courts constrained these powers in the face of public criticism (Guiora, 2005). As of this research paper, the balancing dilemma continues to be negotiated.
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